Con law – Rostron – Spring 2011
Necessary & Proper – power of making “all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the govt. of the U.S., or in any department thereof.
· McCullah v. Maryland
o Power to create a national bank.
o “Indispensably necessary to its existence?”
o The act to incorporate the bank of the US is a law made in pursuance of the Constitution, and is a part of the Supreme law of the land.
· Andrew Jackson vetoed the charter for the US national bank, b/c unconstituional
Commerce Clause – Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
· Gibbons v. Obden
o NY law restricting navigation was in conflict with a Congressional Act.
o Supremacy Clause: If state and federal laws collide, federal laws rule.
o “Commerce transcends boundaries and territorial jurisdictions”.
Who interprets the Constitution? Congress, President and/or Supreme Court?
· Coordinate/Departmentalist approach
o Each branch has the authority to interpret the Const w/n its purposes & no one is supreme to the other and the other is not required to accept the others interpretation.
Bill of Rights (Amendments 1-10) Individual rights
· Barron v. Baltimore: 5th Amendment Takings Clause – wharf rendered useless by State.
o Const Art 1 § 9, 10 = no limitation of action of govt applies to State govts. Unless expressed in terms
o 5th Amendment is limitation on the exercise of power by the U.S. govt and is not applicable to legislation of the States.
§ Takings clause – inhibits taking of private property for public use, w/o just compensation.
· Dred Scott v. Sandford: Slave was not a citizen of Missouri within the meaning of the Constitution; thus, he was not entitled to sue in its courts (no rights, privileges, or immunities).
The Civil War
· Jurisdiction Stripping
o Traditional view: Congress can change Sup Ct or lower federal Ct jurisdiction in any way as long as it does not do so in a way that directly violates some specific Const. provision.
o Opposing view: Congress cannot use its power to change jurisdiction in a way that would
§ Undercut too much the enforcement of a particular right, or
§ Interfere too much w/ judicial branches performance of its essential functions.
· Ex Parte Merryman: Does the president possess the power to suspend the writ of habeas corpus?
o Art 2 §3 – president has duty to take care that the laws be faithfully executed = duty to execute Const. as intended. Justice Taney believes suspension is unconstitutional but right is eventually approved.
o Art 1 § 9 cl.2 – habeas can be suspended in emergency.
o Power/Right to suspend habeas corpus
§ State of emergency
§ Tough times call for strong actions
· The Prize Cases
o Art 1 § 8 cl.11 power to declare war is an executive power, the duty to respond to war by force extends to rebelling states.
o Art 2 § 1 cl.1 (president has executive power)
o Art 2 § 2 cl.1 (presidents role as commander-in-chief)
· The Emancipation Proclamation
o Ends slavery in rebellion states/ border states that never seceded were permitted to retain slavery.
· Ex Parte Milligan – marshal law and the use of military commissions
o If the courts of a sate are open & unopposed, then
§ The principles of military tribunals under the “laws & usages of war” cannot be used to usurp state court power.
o Due process is guaranteed by 4th,5th, 6th, and 14th Amendments.
· Ex Parte McCardle – jurisdiction stripping/ court stripping
o Art 3 § 2 cl.2 – jurisdiction of the Sup Ct = power with such exceptions as Congress may make.
o the legislature having the power under the Const. to make exceptions to appellate jurisdiction of the Sup Ct is given by express words
Constitutional Rights After the Civil War
· 13th Amendment, 14th Amendment §§ 1 & 5 and 15th Amendment
· Art IV State Citizenship: The citizens of each State shall be entitled to all the privileges & immunities of citizens of the several states.
· 14th Amendment US national citizenship: no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states.
· Approaches
o Fundamental rights approach: the 14th Amendment protects fundamental principles of liberty & justice, and that may include some things that happen to be in the bill of rights.
§ The Slaughter House Cases: State monopoly on slaughter houses
· 14th Amendment privileges & immunities are left to the state govts. For protection & not placed under the special care of the fed govt.
· Art IV = treat citizens of other states as you treat the citizens of your state.
· States w/ powers for domestic and local govt is essential to the perfect working of our complex form of govt.
o Total Incorporation approach: the 14th Amendment makes the entire bill of rights apply to State and local govts.
o Twining v. New Jersey/ Selective Incorporation: to be safeguarded against State action the right must be included in the conception of due process of law.
The Civil Rights Cases (full & equal enjoyment)
· 14th Amendment does not prohibit private discrimination. (just state and local)
· 13th Amendment does not specify requirement of govt. action; however, court does not believe denial of civil privileges/accommodations amounts to slavery.
· Vick Wo v Hopkins: Laund
ld solely for local disposition & sale.
o Direct effect on IC = can be regulated
o Indirect effect on IC = remains w/n the domain of state power.
The Switch in time that Saved Nine
· Roosevelt got the court to start doing what he wanted by threatening court packing.
· After 1937
o Liberty of K = gone
o K’s clause & non-delegation doctrine(govt must provide intelligible principles) = so weak that violations almost never happen
o Federal power to regulate interstate commerce
§ Federal govt can regulate
· Interstate shipments & anything rationally related to the channels, facilities, & instrumentalities of interstate commerce.
· Any activity that has a substantial effect on interstate commerce.
· Plus anything else that is a necessary and proper means of accomplishing the end of regulating interstate commerce.
· West Coast Hotel v. Parrish: laws fixing minimum wages for women
o Constitution requires protection of laws against evils which menace the health, safety, morals & welfare of people.
§ There is a public interest in the health of women & their protection form unscrupulous & overreaching employers.
· NLRB v. Jones Steel Corp: violations of national labors relations act by engaging in unfair labor practices affecting commerce.
o if activities have… “such a close & substantial relation to IC that their control is appropriate to protect that commerce form obstruction, Congress cannot be denied the power to exercise control.”
§ Extends power to regulate manufacturing and production.
· Darby v. Darby lumber: the 10th Amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate & plainly adapted to the permitted end.
· Wickard v. Filburn: limited wheat production for the purposes of regulating an endangered market. (end = cut supply & drive up price)
o The power of congress over interstate commerce is plenary & complete, may be exercised to its utmost extent, & acknowledges no limitations other than are prescribed in the Constitution.
o Direct/indirect distinction is gone = now just need substantial effect on IC.
